Abandonware Definition

Abandonware is computer software which is no longer being sold or supported by its copyright holder. Sometimes, it is used as a blanket category for any software over a certain age, usually five years.

The term has no legal meaning. This means that labeling any kind of software 'abandonware' does not make it legal to make copies of it or publish it on a website. Unless the author puts the software in the public domain, abandonware remains covered under copyright law until its copyright term expires.

Alternatively, the term is also used for software which is still available, but on which further support and development have been intentionally discontinued. This article discusses only the first meaning.

History of Abandonware

The concept of distributing old software has existed since the dawn of personal computing, but was always low-key until the advent of the Internet, which enabled games to be accessible to a large audience. While trading old games has had many names and forms, the actual term "Abandonware" was coined by Peter Ringering in late 1996. Peter found a few classic game websites similar to his own, contacted their webmasters, and formed the original "Abandonware Ring" in February 1997. The original Ring was little more than links to each other's websites, with one site indexing them all to provide a rudimentary search facility.

In October of 1997, the Interactive Digital Software Association sent cease and desist letters to all sites on the Abandonware Ring, which resulted in almost all of them ceasing operation (the sole exception being XTC Abandonware which remains the oldest functioning Abandonware site as of 2006). This had the unintended effect of spurring many others to create their own Abandonware sites and organizations (ironically, many more than the original Ring, and even more outside of the Entertainment Software Association's, IDSA predecessor, legal jurisdiction). Some of the early abandonware sites formed after the demise of the original ring include Classic Trash and Home of the Underdogs.

Further fueling the Abandonware concept was the rise of functional emulation of older video games through emulators such as MAME in the late 1990s.

Abandonware and the Law

There is no recognition of a legal term "abandonware" in copyright law. There is a long held concept of "abandonment" in trademark law, but it is a direct result of the infinite term of trademark protection. Currently, a copyright can be released into the public domain if the owner clearly does so in writing; however this formal process is not considered "abandoning," rather "releasing." Non-owners of a copyright cannot merely claim the copyright "abandoned" and start using it without permission of the copyright holder, who would then have a legal remedy.

Abandonware and the United States

In the United States, the concept of abandonware conflicts with the basic copyright concept of awarding a copyright creator a monopoly on their creative expression for a finite term. Under copyright law, copyright owners have the right to profit or not profit from their creations; there is no requirement for a copyright holder to use the copyright in commerce. The basis for this right in the United States is the Copyright Clause of the United States Constitution, which empowers the United States Congress:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries

Because abandonware would conflict with the stated goal of granting "exclusive right" (irrespective of profit), it is not currently recognized in the United States. In 2003, the United States Supreme Court further clarified this in deciding Eldred v. Ashcroft, 537 U.S. 186, which affirmed the legality of the Copyright Term Extension Act, an act that extended the current copyright terms by an extra 20 years. The decision noted that, so long as a copyright term is finite, it is permissible under the Constitution. Thus, a copyright in the United States is protected by the full strength of the law until it expires, between 70 and 120 years after initial creation, giving the copyright owner the monopoly for the duration.

Popular Abandonware

The most common abandonware is old computer and video games that are often played through emulation.

Some people feel various older games are more fun than newer games (hence "old-school gamers"), in part because their designers had to concentrate on gameplay features rather than graphics. These games have gained a second life through Internet distribution. Old-school gamers are responsible for the popularity of console emulation. An abandonware fan is a video-game player who enjoys games that are no longer on the market. In some cases, nostalgia is a significant factor in the popularity of abandonware video games.

Enforcement of Copyright and Abandonware

Abandonware's copyright is frequently no longer defended. This can be due to intentional non-enforcement by its owners due to the software's age or obsolescence, but sometimes because the corporate copyright holder went out of business without transferring ownership, leaving no one to defend the copyright. (Copyrights on works created by an individual become the property of that person's estate after his/her death.) Nevertheless, some companies vehemently defend their rights to old games from which they're no longer making profit.

Proponents of abandonware argue that it is more ethical to make copies of such software than new software that still sells. Some who are ignorant of copyright law have incorrectly taken this to mean that abandonware is legal to distribute, although no software is old enough for its copyrights to have expired, and even in cases where the original company no longer exists, the rights usually still belong to someone else.

Transfer of this software is still technically unlawful in most jurisdictions (except in cases of owner dissolution) as the copyright is still in effect. Abandonware changes hands based on the presumption that the time and money that a copyright holder would have to spend enforcing the copyright is greater than any money the holder would earn selling software licenses. Often the availability of abandonware on the Internet is related to the willingness of copyright holders to defend their copyrights. For example, unencumbered games for Colecovision are markedly easier to find on the Internet than unencumbered games for Mattel Intellivision in large part because there is still a company that makes money by selling Intellivision games while no such company exists for the Colecovision.

Companies do sometimes voluntarily relinquish copyright on software, putting it into the public domain, or re-license it as freeware or free software. id Software is notable as an early proponent of a similar practice, releasing the source code for the engine (but not the actual game content, like levels or textures) of some older titles under a free software license. Other examples are Amstrad, who support emulation and free distribution of ZX Spectrum hardware ROMs and software, and Revolution Software, that has released their game Beneath a Steel Sky as freeware, and gave the engine's source code to the authors of ScummVM to add support for the game to it. Transfer of public domain or free software is perfectly legal, distinguishing it from abandonware. See list of commercial games released as freeware.

Old Copyrights that are Still of Value and Abandonware

A common misconception is that "abandonware" is synonymous with "old warez", that is, any software older than a certain threshold (a common one being five years). This is not always the case, as some software companies (like Apogee) still offer many of their older titles for sale and actively pursue those who illegally offer them. Atari 2600 games are commonly distributed on the Internet based on the presumption that no one would buy a primitive Atari game. However, mobile phone manufacturers have bought the rights to use these games, which can be made to work well on newer programmable mobile phones.

Some publishers argue that all abandonware distribution is harmful, whether it is still possible to buy the game or not. The reasoning is that because of the success companies like Nintendo and Activision have had in releasing old games for newer platforms like the GameCube, Game Boy Advance and the PlayStation 2, all abandonware has potential value, and that distributing it free on the Internet decreases the profits to be had from a legal rerelease. However, the reverse argument is also made: that the distribution of abandonware may help boost sales of new ports of old titles by making them popular again, and that upon re-release, many respectable abandonware sites would remove any downloadable copies of the game from their site in due time. Also, some argue that the new versions of classic titles are never as good as the classic ones. These arguments refer primarily to console games, as it is uncommon for old games to be re-released on the PC platform.

Classic game compilations have become popular on the Xbox, PlayStation 2, and GameCube. Capcom and Midway have released compilation discs, and many other companies are doing the same. Also, many companies add older games as an unlockable in newer titles, like the original Wolfenstein 3D in the Xbox version of Return to Castle Wolfenstein, and Prince of Persia in Prince of Persia: Sands of Time (contained in Prince of Persia: Warrior Within on the Xbox) the original Metroid was also unlockable in Metroid Prime (Nintendo GameCube) and Metroid: Zero Mission (Game Boy Advance), as well as being released on the GBA as Nintendo's NES Classics series. And on handheld systems like the Game Boy Advance, classic games are rereleased or remade for the system.

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